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FOIA Exemptions

Exemption 1 applies to matters that are (A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are i n fact properly classified pursuant to such Executive Order. Executive Order 12356, issued by President Reagan, requires agency records to be classified if their disclosure "reasonably could be expected to cause damage to the national security." Such records, if "in fact properly classified" according to the substantive and procedural rules of the Executive Order, are exempt from mandatory disclosure under the FOIA.

Requesters should note that courts have upheld agencies decisions to "neither confirm or deny" the existence of requested records in cases where disclosure merely of the records' existence reasonably could be expected to cause damage to the national security. FOIA amendments adopted in 1986 authorize the FBI to do this for its classified records pertaining to foreign intelligence, counterintelligence, or international terrorism investigations.

Exemption 2 applies to matters that are "related solely to the internal personnel rules and practices of any agency." This has generally been interpreted to exempt from disclosure only those minor and routine matters in which the public could not reasonably be expected to have an interest. It has also been interpreted to exempt law enforcement manuals from disclosure where such manuals are predominantly of internal interest to agency personnel and their disclosure significantly risks circumvention of agency regulations or statutes.

Exemption 3 applies to matters that are "specifically exempted from disclosure by statute (other than Section 552b of this title) provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." In order to assert this exemption, an agency must cite a federal statute other than the FOIA and show that (1) the statute meets either the (A) or (B) criteria of the exemption, and (2) the records at issue fit within the category of information which the statute authorizes to be withheld." There is no comprehensive list of statutes meeting the exemption criteria.

Exemption 4 applies to matters that are "trade secrets and commercial or financial information obtained from a person and privileged or confidential." In order to bring a record within this exemption, an agency must show that the information is (A) a trade secret or (B) information that is (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential. If the information was generated by the government, it cannot fall within this exemption. However, the term "person" is here, as elsewhere in the FOIA, broadly construed to include a wide range of entities, private corporations and the like.

Requested records will be considered "confidential" within the meaning of this exemption if their disclosure is likely to either impair the government's ability to obtain necessary information in the future, or cause substantial harm to the competitive position of the person from whom the information was obtained.

Exemption 5 applies to matters that are "inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. This provision was intended to incorporate certain common law discover privileges into the FOIA exemption scheme, and it is probably the most complex of the FOIA's nine exemptions. Included within its scope are the "executive" privilege (protective advice, recommendations and opinions which are part of the deliberative, consultative, decision-making processes of government), the attorney "work-product" privilege (protecting documents prepared by the attorney in anticipation of particular proceedings, where disclosure would reveal the attorney's litigation strategy or theory of the case), and the attorney-client privilege (protecting confidential communications between an attorney and his client).

Exemption 6 applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy." This exemption requires agencies and Courts to balance personal privacy interests against the public interest in disclosure when the record of information at issue can be identified as applying to a particular individual.

Exemption 7 applies to records or information compiled for law enforcement purposes, but "only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information complied by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual."

Exemption 8 applies to matters that are "contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions." This seldom-encountered exemption is broadly applied by the courts to withhold a wide variety of reporting materials from many different kinds of "financial institutions."

Exemption 9 applies to matters that are "geological and geophysical information and data, including maps, concerning oil well." This least-asserted, lest-litigated exemption of the FOIA provides blanket protection for oil well information, which is in most cases also protected by Exemption 4.